United States District Court, W.D. Virginia, Roanoke Division
Daniele DePaolis, Pro Se Plaintiff.
W. Rosen, Pender & Coward PC, Virginia Beach, Virginia,
for Defendants Moore, Bledsoe, Ball, and McCoy; Margaret
Hoehl O'Shea, Assistant Attorney General, Office of the
Attorney General of Virginia, Richmond, Virginia, for
Defendants Virginia Department of Corrections and Tate.
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE.
plaintiff, a Virginia inmate proceeding pro se, brings this
civil rights complaint under 42 U.S.C. § 1983 and
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
alleging that the defendants have provided him with
inadequate medical care for a blocked salivary gland and
shoulder discomfort. He has also moved for preliminary
injunctive relief. After review of the record, I conclude
that the defendants' Motion for Summary Judgment and
Motion to Dismiss must be granted and that the plaintiff is
not entitled to preliminary injunctive relief.
Plaintiff's Allegations and Claims.
plaintiff, Daniele DePaolis, is confined at Red Onion State
Prison (“Red Onion”), a prison facility operated
by the Virginia Department of Corrections
(“VDOC”) in Pound, Virginia. He alleges that his
throat started swelling on July 20, 2017. When he saw Dr.
Paul Moore for this complaint, the doctor allegedly
“misdiagnosed him, stating it's probably just a
little swelling from your jaw. I'll order you some
Motrin.” Compl. 1, ECF No. 1.
Dickenson ordered DePaolis antibiotics for his throat issue,
which he alleges “was a misdiagnosis of the
problem.” Id. at 2. Dr. Moore eventually sent
DePaolis to Dr. Hollyfield who allegedly “ran a cat
scan and found a stone in [DePaolis'] saliva gland [and]
[t]hen performed a botched surgery” on March 13, 2018.
Id. at 1-2. Afterwards, Dr. Hollyfield said that
DePaolis needed a more invasive surgery than he was able to
perform. In January of 2019, DePaolis was sent to a
specialist who allegedly “tried to fix what Dr.
Hollyfield botched but something went wrong and they lost the
stone.” Id. at 2. The specialist told DePaolis
that it would be best to have the saliva gland removed or he
would keep having problems with it. DePaolis states that in
April 2019, when he filed this Complaint, the gland still
“swells up with blood underneath his tongue, and bleeds
also complains that on April 9, 2018, Dickenson
“misdiagnosed him and stated that there was absolutely
nothing wrong with his shoulder and everything [was]
normal.” Id. Nearly seven months later, two
doctors at Sussex I State Prison (“Sussex I”)
performed the same test on DePaolis's shoulder and
reached “a major difference in results.”
Id. As a result of their diagnoses, these doctors
ordered an arm sling for DePaolis to wear and wrote orders
for him not to be handcuffed behind his back and for a bottom
bunk assignment. DePaolis alleges that these orders were
these orders, when DePaolis returned to Red Onion, Nurse J.
Bledsoe and Nurse Practitioner (“NP”) Ball
allegedly told DePaolis on April 9, 2019, that there was
nothing wrong with his shoulder. They informed him that he
did not need an arm sling or to avoid being handcuffed behind
his back. With NP Ball's approval, Nurse McCoy allegedly
cut off the arm sling DePaolis was wearing. Bledsoe and NP
Ball continued the prescription for naproxen pain medication
that the doctors at Sussex I had written for his shoulder.
Tate, the head of Red Onion security, has allegedly ordered
his subordinates to handcuff DePaolis behind his back. When
he is cuffed behind his back, the “shoulder to what
feels like it pops out of place then pops back into place
when the handcuffs are removed and he's able to bring his
arm back around to the front of him. Which causes severe
pain, suffering and numbness for duration of periods of a
time, when he's handcuffed behind his back.”
Id. at 4.
Complaint asserts the following claims: (1) Dr. Moore and
Cheri Dickenson committed malpractice by misdiagnosing
DePaolis' problems with his salivary gland, Dr.
Hollyfield committed malpractice when performing surgery on
DePaolis' salivary gland; and Dickenson committed
malpractice by misdiagnosing DePaolis' shoulder problem;
(2) Nurse Bledsoe and NP Ball were deliberately indifferent
to a serious medical need when they deprived DePaolis of his
arm sling and his order for front cuffing only; (3) Bledsoe,
Ball, and McCoy used excessive force against DePaolis when
they cut off his arm sling; and (4) Tate used excessive force
against DePaolis by ordering officers to cuff him behind his
VDOC and Major Tate have filed a Motion to Dismiss, and
defendants Moore, Bledsoe, Ball, and McCoy have filed a
Motion for Summary Judgment. DePaolis has responded to the
defendants' motions, making them ripe for disposition.
support of their Motion for Summary Judgment, Moore, Bledsoe,
Ball, and McCoy offer records concerning the treatment
provided to DePaolis during the period in question. In August
of 2018, Dr. Moore, the Red Onion dentist, referred DePaolis
to the Virginia Commonwealth University Medical Center
(“VCU”) to be evaluated for oral surgery on a
blocked salivary gland. DePaolis was moved to Sussex I. On
January 16, 2019, after a CT scan requested by VCU, he was
reevaluated and a laser ablation of the salivary glad was
recommended. Dr. Robert Strauss performed that procedure on
March 12, 2019. DePaolis had a follow up examination at VCU
on March 20, 2019. The surgeon's report from that visit
states, “No further surgical intervention required.
Patient healing well with no sign of infection or reported
pain.” Mem. Supp. Mot. Summ. J. Ex. 2, ECF No. 26-2 Two
weeks of wound care with a topical antibiotic was
recommended. After that care, the treating physician wrote
that no further treatment was needed and that “the
patient looks great.” Id. at Ex. 3, ECF No.
April 5, 2019, DePaolis was transferred back to Red Onion,
with a sling on his right arm, a brace on his right wrist,
and a medical transfer note indicating the need for a daily
dressing change until the wound healed. Red Onion staff
placed him in medical housing, pending clarification of his
needs. On April 9, 2019, Nurse Bledsoe, the Health Services
Administrator, consulted with Sussex I medical personnel. She
was informed that DePaolis's use of the sling would cause
damage to his shoulder and that he had range of motion and
function in that limb. Bledsoe also learned that DePaolis had
used the wrist brace for a couple of years.
April 9, 2019, NP Ball examined DePaolis. She noted that an
X-ray report from October of 2018 showed only a mild,
degenerative changes in his shoulder. An earlier X ray of his
right shoulder on April 9, 2018, showed “[n]o
significant degenerative changes” and “[n]o acute
abnormality” of the joint. Id. at Ex. 8, ECF
No. 26-8. DePaolis was provided an ace wrap for his wrist. He
did not mention his surgery, the wound, or any drainage
during NP Ball's examination, or at any time thereafter.
On April 10, 2019, Major Tate approved DePaolis for use of
the elastic wrist brace, and ...